New NLRB Advice Memo Clarifies Social Media Policy Rules

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

The National Labor Relations Board continues to provide guidance with respect to employers’ attempts to regulate employee social media behavior. In its Boeing Co. decision, the board made it significantly more difficult for employees or unions to contend that handbook and other policies interfere with protected employee concerted activity rights. On August 15, the NLRB’s counsel released an advice memorandum that applies Boeing’s rationale to an employer’s social media policy.

CVS Health asked the board to opine on several features of its corporate social media policy. The NLRB counsel approved of features in the policy that require employees to state that they are not speaking on behalf of the company. The letter also approved of requirements for approval before using CVS logos, product names, or identifying company social media accounts. In addition, the board’s counsel blessed prohibitions against posting personal information about co-workers or customers without obtaining their consent, restricting use of photos taken in non-public work areas, and maintaining the confidentiality of internal CVS communications. Finally, the letter approved of the use of mandatory disclaimers when employees discuss CVS on their personal social media accounts.

The board did find several features of the CVS policy unacceptable under Boeing, including a requirement that employees identify themselves when stating social media opinions involving CVS. The board counsel also disapproved of a broad prohibition against disclosure of any protected health information or personal identifying information because it could prevent employees from contacting one another to discuss terms and conditions of employment.

These interpretations stand in contrast to a series of pre-Boeing NLRB decisions that found the various approved social media policy features to interfere with employee concerted activity rights. If followed by the board in future decision, these opinions would substantially strengthen employers’ ability to regulate employee social media behavior.

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